AAR 4155 Construction Law & Practice (for Professional Architect)

Introduction-Part 1-Week 1

Phrase from the Al Quran

To every people We have appointed rites and ceremonies which they must follow: let then not then dispute with you on the matter, but you do invite (them) to your Lord: for you are assuredly on the Right Way.If they wrangle with you. Say, Allah knows best what it is you are doing.Allah will judge between you on the Day of Judgment concerning matters in which you differ (Surah Hajj22:67-69)

The Story Board

PART1: WEEK 1 DEFINITION OF LAW & PRACTICE : CONSTRUCTION LAW PART 2: WEEK 2 ARCHITECTS ACT & RULE TYPES OF PROFESSIONAL PRACTICE AND CODE OF ETHICS BUILDING TEAM

PART1: WEEK 1 DEFINITION OF LAW & PRACTICE : CONSTRUCTION LAW

WHAT IS LAW? WHAT IS CONSTRUCTION LAW?

DEFINITION OF LAW & PRACTICE

What is construction law and practice? Singh H (2002)pg 23, states that Technology in practice cannot be divorce from the law. The law is the enabling mechanisms to provide for the management and the regulation of the relationship between the parties to a technological endeavor.

DEFINITION OF LAW & PRACTICE

The word Law means differently to different aspects and circumstances To Curzon (Dictionary of Law), Law means the written and unwritten body of rules largely derived from custom and formal enactment which are recognised as binding among those persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions John Austin ( The Province of Independence Determined) explains Law as ..a command set by superior being to an inferior being and enforced by sanctions (punishment)..

DEFINITION OF LAW & PRACTICE

In Summary Law Is a body of rules or commands set by a superior being (i.e. State/Government) to govern an inferior being ( I.e. an individual); can be written or unwritten form; are essentially custom and legislation; Binding on members of the community or state; and Enforcement through appropriate sanctions I.e. fines, imprisonment etc

DEFINITION OF LAW & PRACTICE Article 160(2) of the Federal Constitutions:

Law Include Written law, the common law in so far as it is in operation in the federation or any part there of and any custom or usage having the force of law in the federation or any part thereof. Law is a necessary element that bind a community or society into a cohesive, workable entity where rights and obligations are respected. It is neither a creation of the intellect nor an unalterable fact of nature.it is constantly changing system of rules fashioned through constant interaction of society and needs over the dimension of time.

DEFINITION OF LAW & PRACTICE

In essence: Law is a principle; Law is conceived Law is a rule of duty

DEFINITION OF LAW & PRACTICE

For Law to prevail: The regular law of the land must predominate over and exclude the arbitrary exercise of power by the government. In its enforcement , all citizens should be subject equally to the law administered by the ordinary courts of the land and the law must be derived from individuals rights as declared by the said courts. Hence, the LAW mandates acts or behaviour that are lawful, must be warranted or authorised by, or not contrary to, nor forbidden by the Law.

DEFINITION OF LAW & PRACTICE

Categorization of LAW
General Substantiate and Procedural Law Written and Unwritten Law Public, Private and International Law

CATEGORIES OF LAW
Categories of Law

Singh.H (2002)

Per Content

Per Sources

Per Enforcement

Substantive Law
Define rights and Duties Stipulates sanctions

Procedural Law
Lays down rules to set process of law in motion eg.Arbitration

Public Law

Private Law

International Law

Written Law
Constitution Legislation

Unwritten Law
Customary Law Case Law/ Judicial decision Common Law/Equitable Principles

CLASSIFICATION OF LAW
Classification of Law
Public Law Nature
Directly connected with affairs of the State

Private Law Examples Nature

Deals with the relationship between individuals The rights and duties of private citizens

International Law

Examples Types

Public

Private

Constitutional Law

Administrative Law

Criminal Law

Singh.H (2002)

Law of Contract

Law of Property

Law of Tort

Commercial Law

SOURCES OF MALAYSIAN LAW

Singh.H (2002)

Sources of Malaysian Law

Legal Sources

Historical Sources

Sources of Reference

Written Law
Constitution Legislation Subsidiary/De legated Legislation

Unwritten Law
Judicial decisions Applicable English Law Customary Law

Syariah Law

Statutes
Acts Enactment Ordinances

Law Reports/ Journals

Local Foreign

Judgments Unreported Published

Authoritative Texts
Textbooks Treatise/Papers

Customs

Trade Usages

Authoritative Opinions

LEGAL SOURCES OF MALAYSIAN LAW

Legal Sources of Malaysian Law
Written Unwritten Law Syariah Law
Muslim Law Applicable to those practising Islamic Faith

Constitutional Law
Federal Constitution State Constitutions

Legislation
Acts of Parliament State Laws (Ordinances/ Enactments)

Subsidiary/ Delegated Legislation

Delegated by Acts of Parliament eg. Uniform Building Bye-Laws,etc

Singh.H (2002)

Judicial Decisions
Case Law Doctrine of Stare Decisis/ Judicial Precedent

Applicable English laws

Common Law Equitable Principles Statutes of General Application

Customary Laws
Native Customs Trade Custom/Usage

ENGLISH LAW IN MALAYSIA

Under the Civil Law Act 1956 Section3(1) of the Act In Peninsula Malaysia from 7 April 1956-rules of equity Sabah on 1st December 1951-rules of equity and statutes of general application Sarawak on 12th December 1949-rules of equity and statutes of general application Subject to : So far as the circumstances of the States of Malaysia and the respective inhabitants permit; Such qualification as local circumstances make necessary; In the absence of local legislation, the English laws applies
Singh.H (2002)

MUSLIM OR SYARIAH LAW

Tun Mohammed Suffian described. Syariah or Muslim law, is partly divine in origin being found in the words of God in the holy Quran. It is partly human in origin being found in interpretations attributed to Prophet Muhammad. S.A.W of some words of God (this interpretation is recorded in the Hadith traditions), in laws agreed by learned lawyers in days of old, in commentaries by learned ancient and modern scholar and in custom

MUSLIM OR SYARIAH LAW

Traditionally, Muslim Law has been confined to personal laws relating to issues such as marriage, divorce, guardianship, inheritance,etc and is enforced in each state by the Syariah or Muslim Courts. However, towards inculcating more Islamic elements into administrative and legal spheres of the country, Muslim law has been established beyond its traditional categories e.g.banking. Commercial, financial .increasingly important legal source of law in Malaysia..

CONSTRUCTION LAW
What is construction law?.as it is the legalities involved in construction professionals everyday transaction John Uffs comment Construction Law is neither a legal term of art nor a technical one. It is used to cover the whole field of law which, in one way or another,affects the construction industry.. Interchangeable with building law, engineering law construction law covers a wider scope, all encompassing then building or engineering law Singh.H (2002)
At the moment..Muslim Law is excluded

TYPES OF LAW IN ENGINEERING / CONSTRUCTION WORKS

Construction Law

Types of Law in Engineering/Construction Works Engineering Law Building Law

LEGAL SOURCES OF CONSTRUCTION LAW Legal Sources of Construction Law

Written Law Unwritten Law

Legislation

Subsidiary/ Delegated Legislation

Delegated by Acts of Parliament eg Uniform Building by Laws.etc

Judicial Decisions
Local Case Law Doctrine of Stare Decisis/ Judicial Precedent

Applicable English Law

Trade Custom /Usage

Particular to the Engineering/Cons truction Industry For implication/ interpretation of terms

Acts of Parliament
Statutes Subsidiary/Dele gated Legislation

State Laws
Ordinances Enactments

Common Laws
Common Law Principles Case Law Subject to Section 3 & 5 of the Civil Law Act 1956

Equitable Principles
As permitted under Sect 3 of Civil Law Act 1956

Statutes
Under Sect 3 & % of Civil Law Act 1956 Statutes of General Application, Commercial law, etc

Common Categories of Construction Law

COMMON CATEGORIES OF CONSTRUCTION LAW

Public Law
Criminal Law Specific Acts Eg. Street, Drainage and Building Act 1974 Architects Act 1967 Registration of Engineers Act 1967,etc

Law of Contract
Contract Acts 1950 Applicable Common Law and Equitable Principles Judicial Precedent/ Case Laws

Law of Tort
Actions against individuals Common Torts

Commercial Law
Company Law Law of Trust Insurance Law Specific Acts e.g Sales and Purchase Agreement Arbitration Act 1952 Sale of Goods Act 1957

Civil Law
Civil Law Act 1956 Applicable English Law Judicial Precedent/Case Law

Negligence

Nuisance
Private Public

Misinterpretation
Innocent Negligent Fraudulent

Defamation
Libel Slander

Vicarious Liability

In Summary for Part 1

When addressing issue of construction law it is prudent to consider the following fields of law impacting on or contributing to it:
Law of Contract Law of Tort Civil Law Commercial Law Public Law ( for international contracts and private international law)

In Summary for Part 1

..of growing importance in the
engineering/construction industry is the impact of the law of tortdeveloping rapidly in the developed world and in Malaysia.. ..there is no aspect of human endeavor that has been spared the effects of this branch of law..and in the construction industry major torts are Negligence Nuisance (both public and private) Misinterpretation Defamation Vicarious liability

In Summary for Part 1

..in civil lawin civil issues enforced by civil courts help shape the rights, duties and liabilities of the main players in the industry. ..in commercial issues.involved elements of company law, law of trust, insurance law ..specific act e.g. Arbitration Act 1952, Sale of Goods Act 1957, available local law

In Summary for Part 1

..public lawconformance to relevant planning and building Acts and Regulations or persecution or sanction in event of default or breachStreet, Drainage and Building Act 1974 professional dereliction of duty. The relevant statute, e.g. Architects Act 1967, Registration of Engineers Act 1967to protect the public interest and sanction delinquent members of the industry

In Summary for Part 1

Construction lawcut across a broad area of the law of the land with its attendant rights and obligations. A practitioner of construction law must be conversant with the core aspects involving the Law of contract Law of tort whilst not discounting..Civil Law, Commercial Law, Public Law.( for foreign contracts).. private international law

WEEK 2 ARCHITECTS ACT & RULE TYPES OF PROFESSIONAL PRACTICE AND CODE OF ETHICS

COMPETITION COMMISSION CONTRACT AGREEMENT WITH CLIENT PROFESSIONAL SCALE OF FEES

REFERENCES
Singh.H (2002) Law & PrinciplesEngineering and Construction Contract Management. Singapore.LexisNexis